Deck 4: Alternative Dispute Resolution

Question 1

Which of the following is an extension of negotiation?

A) Arbitration
B) Minitrials
C) Neutral case evaluations
D) Mediation
E) Private trials

Answer 1

D
Explanation: Mediation is an extension of negotiation.

Question 2

ADR is a process done only in the U.S.,not in foreign countries.

Answer 2

False
Explanation: In the global context, ADR is favored over litigation.

Question 3

Negotiation is a bargaining process in which disputing parties interact informally,but only with lawyers,to attempt to resolve their dispute.

Answer 3

False
Explanation: Negotiation is a bargaining process in which disputing parties interact informally, with or without lawyers, to attempt to resolve their dispute.

Question 4

Which of the following was the result at the U.S.Supreme Court level in Circuit City v.Saint Clair Adams,the case in the text involving whether arbitration applies in employment contracts?

A) The Court ruled that the Federal Arbitration Act applies in employment contracts.
B) The Court ruled that neither the Federal Arbitration Act nor the common law of arbitration applies in employment contracts.
C) The court ruled that the Federal Arbitration Act does not apply in employment contracts but that state statutes involving arbitration would apply to employment contracts.
D) The Court ruled that the Federal Arbitration Act does not apply in employment contracts but that the common law of arbitration applies in employment contracts.
E) The Court ruled that whether the Federal Arbitration Act applies in employment disputes depends on the type of employment dispute involved, and that if the dispute involves claims of age discrimination, the Federal Arbitration Act does not apply.

Question 5

Med-arb is a type of ADR method.

Question 6

Assuming the Uniform Mediation Act provisions apply,did Brice correctly tell Jenny that mediation is nearly the same as arbitration?

A) No, he was incorrect. There are major differences between mediation and arbitration.
B) He was correct because the only difference between the two involves the length of the proceeding.
C) He was correct because the only difference between the two involves cost.
D) He was correct because the only difference between the two involves whether a court reporter is present.
E) He was correct because the only difference between the two involves the type of evidence that may be considered.

Question 7

What was the result in the Case Opener in which an employee of Hooters complaining of sexual harassment attempted to avoid a signed arbitration agreement?

A) The court fully enforced the arbitration agreement as it was written.
B) The court required that Hooters rewrite the arbitration agreement, and it was then enforced.
C) The court itself rewrote the arbitration agreement, and it was then enforced.
D) The court enforced the arbitration agreement in part, but required, contrary to the agreement, that Hooters provide the employee the specifics of its defenses at least 5 days before the commencement of the arbitration.
E) The arbitration agreement was not enforced by the court.

Question 8

Which of the following is a type of ADR?

A) Consultation
B) Mediation
C) Case argument
D) Case analysis
E) Focus grouping

Question 9

Assuming that Uniform Mediation Act provisions and the Federal Arbitration Act apply,can Brice obtain information regarding what occurred at previous mediations and arbitrations?

A) Under federal law, Brice is entitled to all documents introduced at both mediations and arbitrations, and he can also get copies of statements, but only for proceedings at which a court reporter was present.
B) Under federal law, in regard to mediations, Brice can get copies of any written documents reviewed but not accounts of statements; and he cannot get any information regarding previous arbitrations.
C) Under federal law, Brice can get accounts of statements but not copies of written documents in regard to both mediations and arbitrations.
D) Under federal law, Brice can get copies of documents but not accounts of statements in regard to both mediations and arbitrations.
E) Federal law does not entitle Brice to any information from previous mediations or arbitrations.

Question 10

Which of the following is accurate regarding the speed and cost of ADR?

A) It is usually faster and cheaper.
B) It is usually faster but more expensive.
C) It is usually slower and more expensive.
D) It is usually slower but cheaper.
E) No studies have known, so issues regarding the speed and cost of ADR as opposed to traditional litigation is unknown.

Question 11

Courts are generally critical and unsupportive of ADR methods.

Question 12

Which of the following was the result at the Supreme Court level in Mitsubishi Motors Corp.v.Soler,the case in the text involving whether an American court may enforce an agreement to resolve antitrust claims by arbitration when that agreement arises from an international transaction?

A) The Court recognized that the arbitration agreement should be enforced.
B) The Court refused to enforce the agreement because international parties were involved.
C) The Court refused to enforce the agreement because antitrust claims were involved.
D) The Court refused to enforce the agreement because there is a lack of federal substantive law supporting the enforcement of agreements to arbitrate.
E) The Court ruled that the arbitration agreement would be upheld but only if the parties conducted the arbitration in Japan, the home of Mitsubishi.

Question 13

Was Brice correct when he told Jenny that if she lost at the arbitration level,a federal judge would consider the case anew without consideration of the arbitration agreement?

A) Yes, because an action in court is considered completely separate from an arbitration proceeding.
B) Yes, but only if Jenny filed an "Intent to Seek Further Relief" form with the arbitrator.
C) No, because the arbitration agreement would completely bar Jenny's ability to file a court action.
D) No, because in a later court action, a federal judge in district court would only reverse an arbitrator's decision for certain reasons such as that the arbitrator displayed bias or corruption.
E) Brice is correct only because an international company is involved.

Question 14

A person must be a lawyer in order to perform arbitration.

Question 15

An arbitrator is more likely to issue a compromise decision than a judge.

Question 16

The term ADR refers to the resolution of legal disputes through methods other than litigation.

Question 17

A summary jury trial leads to a binding jury verdict.

Question 18

In an early neutral case evaluation,the neutral provides a binding ruling.

Question 19

A person must have a law degree in order to be a mediator.

Question 20

Is Brice correct that a federal law provides that arbitration agreements involving international businesses are unenforceable?

A) He is partially correct. The law only applies to any country not a party to the North American Free Trade Agreement.
B) He is partially correct. The law only applies to any country that has signed the North American Free Trade Agreement.
C) He is partially correct. The law only applies to European countries.
D) He is incorrect.
E) He is correct.

Question 21

According to the text,positive points of arbitration involve(s)which of the following?

A) Arbitrators are assigned so parties do not have to pick them.
B) Arbitration is generally less expensive than litigation.
C) Arbitrators are bound by the same rules as judges in applying precedent.
D) Arbitrations can be set aside on appeal for the same reasons as court judgments.
E) Arbitrations prohibit the use of legal counsel.

Question 22

Which of the following is true regarding the use of legal counsel at arbitration proceedings?

A) It is up to each of the parties. They may have legal counsel or they may not.
B) Parties may not have legal counsel.
C) Parties may have legal counsel if they had legal counsel in mediation proceedings. Otherwise, legal counsel may not be used.
D) Individuals may have legal counsel, but corporations may not.
E) Corporations may have legal counsel, but individuals may not.

Question 23

Which of the following is accurate regarding George's refusal to hear testimony other than that presented by Bob and Susan?

A) George was wrong. He had a duty to consider other relevant testimony as well.
B) George was correct.
C) George was correct, but only because the dispute involved the discontinuance of a business.
D) George had a duty to consider other testimony, but only up to two other witnesses per side.
E) George had a duty to consider other testimony, but only up to three other witnesses per side.

Question 24

Which of the following is accurate regarding George's refusal of a continuance based upon Susan's medical problem?

A) George's statement that a hearing must be held within 30 days was correct.
B) George was prohibited by law from granting a continuance over Bob's objection.
C) George was incorrect regarding the time in which a hearing must be held because under the Federal Arbitration Act, the applicable time period is 60 days.
D) Under the Federal Arbitration Act, an arbitration proceeding may not be postponed based upon illness.
E) George was probably wrong in refusing the continuance, and that could present a basis upon which to set aside his award.

Question 25

Which of the following is true regarding the remedy if a party does not abide by an agreement reached in mediation?

A) Because mediation is a voluntary process, there is no legal remedy.
B) The remedy is to return to mandatory mediation.
C) The remedy is to proceed to arbitration.
D) The remedy is to sue for breach of contract.
E) The remedy is to proceed to a minitrial.

Question 26

According to the text,which of the following are criticisms of arbitration?

A) That arbitration is more expensive than court litigation.
B) That companies can more easily hide misdoing.
C) That it is too easy to get an arbitration award reversed by a judge.
D) That parties have less control through the arbitration process than through a judicial action.
E) That arbitration actions are less private than judicial actions.

Question 27

A[n] ______ clause has been defined as one in which the terms are "manifestly unfair or oppressive and are dictated by a dominant party."

A) Unconscionable
B) Unreasonable
C) Outrageous
D) Prohibitive
E) Unsupportable

Question 28

Will Jill likely be bound by the arbitration provision that she can only receive $150 in damages?

A) Yes, she signed the agreement.
B) She will likely be bound only if the company can show that it has not made a substantial profit in the past 12 months.
C) If an arbitration award on that basis is appealed, a federal district judge would likely find the provision unenforceable.
D) She can avoid the provision if she testifies that she did not read it before signing the agreement.
E) She will likely be bound unless she can show that the company made a misrepresentation to her.

Question 29

Which of the following is true regarding the Equal Employment Opportunity Commission (EEOC)position on mediation?

A) The EEOC encourages the mediation of employment discrimination claims.
B) The EEOC discourages the mediation of employment discrimination claims.
C) The EEOC discourages the mediation of employment discrimination claims in sexual harassment cases but not in age discrimination cases.
D) The EEOC discourages the mediation of employment discrimination claims in age discrimination cases but not in sexual harassment cases.
E) The EEOC encourages the mediation of all employment discrimination claims except for those arising under the Americans with Disabilities Act where the use of mediation is discouraged.

Question 30

Which of the following is true regarding the Uniform Mediation Act?

A) There is no Uniform Mediation Act because of the controversy involved in attempting to negotiate such an act.
B) It provides for a mediation privilege but does not specifically require that mediators identify conflicts of interest, and all states have adopted it.
C) It does not provide for a mediation privilege but does specifically require that mediators identify conflicts of interest, and all states have adopted it.
D) It provides for a mediation privilege but does not specifically require that mediators identify conflicts of interest, and less than half the states have adopted it.
E) It provides for a mediation privilege, mediators are required to identify any conflicts of interest, and less than half the states have adopted it.

Question 31

What effect will the provision that the arbitration will be conducted at the company's home state have on the agreement?

A) None; only because an employee/employer relationship is involved.
B) None because Jill freely signed the agreement.
C) None because a domestic company, not an international one, is involved.
D) A court will be unlikely to enforce the agreement only if it can be proven that Jill did not read the agreement before she signed it.
E) A court may be more likely to not enforce the agreement because of the distance and expense involved.

Question 32

Which of the following is true regarding arbitration in Brazil?

A) Brazilian lawmakers have reformed several articles in the Brazilian Civil Code to increase the practice of arbitration.
B) Parties must sign an "arbitration commitment" recognizing that the parties agree that any decision may be appealed to the judiciary branch of government.
C) Because of a commitment by legislators to reduce arbitrations, parties may only arbitrate family law matters.
D) Because of a commitment by legislators to reduce arbitrations, parties may only arbitrate corporate law matters.
E) Arbitration is outlawed in Brazil.

Question 33

What effect would the provision requiring that she pay have on the agreement?

A) It will have no effect because Jill signed it, and she is bound by it.
B) Jill will be bound by the provision because while under federal law she had three days in which to back out of the agreement, she did not do so.
C) Jill will be bound by the agreement unless she testifies that she did not read it.
D) Jill will be bound by the agreement unless she can prove that she was orally promised it would not be enforced.
E) Courts have refused to enforce arbitration agreements that require that the plaintiff pay the costs of the arbitration.

Question 34

Which of the following is true regarding strikes under the National Labor Relations Act?

A) A union must contact the State Mediation Consortium to attempt to mediate its demands before beginning a strike to achieve higher wages or better working hours.
B) A union must contact the National Mediation Service to attempt to mediate its demands before beginning a strike to achieve higher wages or better working hours.
C) A union must contact the Federal Mediation and Conciliation Services to attempt to mediate its demands before beginning a strike to achieve higher wages or better working hours.
D) A union must contact the Judicial Arbitration and Mediation Services to attempt to mediate its demands before beginning a strike to achieve higher wages or better working hours.
E) A union has no obligation to inquire into mediation before beginning a strike for any reason.

Question 35

When is an arbitrator's decision called an "award"?

A) Always.
B) Only if one party completely wins and there is no split decision.
C) Never.
D) Only if a money award is involved.
E) Only if both parties had lawyers because that terminology makes it easier for the lawyers to be paid.

Question 36

If a contract does not provide for arbitration,parties may submit a specific dispute involving a contractual provision to arbitration through the use of a ______.

A) Binding arbitration clause
B) Submission agreement
C) Binding mediatory clause
D) Suggested ADR resolution clause
E) The parties may not submit a specific dispute to arbitration if the contract does not provide for arbitration

Question 37

The arbitrator typically provides a decision within ____ days of an arbitration hearing.

A) 10
B) 25
C) 30
D) 90
E) 120

Question 38

Did George act properly in hearing the dispute?

A) He acted properly because it is presumed that arbitrators are unbiased regardless of their relationship with a party.
B) He acted properly because he only had to reveal the information at issue if Susan had directly asked about it.
C) He should have revealed that he was married to Bob's cousin, but none of the other information had to be revealed.
D) He should have revealed that he had received loans from Bob, but he had no obligation to reveal other information.
E) He should have revealed all the information and should have refused to arbitrate the case. His actions would be considered by a federal district judge and the award would likely be set aside because of showing of bias.

Question 39

Several merchants signed a binding arbitration agreement with American Express Co.The arbitration agreement included a clause prohibiting class action arbitration.Later,after a serious dispute arose involving a federal statute,the merchants wanted to pursue class action arbitration against American Express arguing that it would be too expensive to pursue the claims individually.Assuming the Federal Arbitration Act applies,how should a court rule on the issue?

A) The court should uphold the agreement prohibiting class action arbitration.
B) The court should strike the whole arbitration agreement because a claim under federal law is involved, and the parties should be required to go to court for any relief.
C) The court should uphold the arbitration agreement itself but strike the provision prohibiting class action arbitration.
D) The court should uphold the arbitration agreement itself and uphold the class action provision but limit any class action proceeding to no more than 20 plaintiffs.
E) The court should uphold the arbitration agreement itself and uphold the class action provision but limit any class action proceeding to no more than 10 plaintiffs.

Question 40

Would the arbitration agreement be deemed void because it provided that the arbitrator was not bound by the federal rules of evidence?

A) Yes.
B) Only if the arbitrator was not also a lawyer.
C) Only if the arbitrator was a lawyer.
D) The agreement to arbitrate would be upheld so long as the arbitrator agreed to at least apply federal hearsay rules.
E) No, because the rules of evidence applicable in a trial are typically relaxed in arbitration.

Question 41

Which of the following is generally true regarding minitrials?

A) It is more costly than arbitration.
B) In a typical minitrial, business representatives have settlement authority.
C) A minitrial utilizes a jury to make a recommended decision.
D) A minitrial must follow and come after a failed mediation.
E) A minitrial must follow and come after an arbitration.

Question 42

Which of the following is true in regard to precedent in relation to law in general and arbitration?

A) Like the law in general, the law governing arbitration agreements is not a fixed set of rules or precedents.
B) Unlike the law in general, the law governing arbitration agreements is a fixed set of rules or precedents.
C) Law in general has a fixed set of rules or precedents, but the law governing arbitration is not a fixed set of rules or precedents.
D) Neither the law in general nor the law of arbitration has a fixed set of precedents.
E) Both the law in general and the law of arbitration have a fixed set of precedents except in the area of consumer law in which there is no fixed set of law or precedents.

Question 43

Which of the following is true regarding the form of ADR known as "negotiation"?

A) The ADR process known as "negotiation" is the same as the ADR process known as "mediation."
B) There is only one approach to negotiation, problem-solving.
C) There is only one approach to negotiation, adversarial.
D) There are two approaches, adversarial negotiation and problem-solving negotiation.
E) There is no form of ADR known as negotiation.

Question 44

Which of the following is true regarding the federal appellate court system's use of ADR?

A) All federal courts use arbitration but few have mediation programs.
B) While ADR is popular at the district court level, few federal appellate courts use it.
C) Almost all federal circuit courts of appeal have mediation programs underway.
D) By law ADR is outlawed at the federal appellate court level.
E) All federal appellate courts use early neutral case evaluation but none use mediation.

Question 45

What did the U.S.Supreme Court rule in the case of Robert Gilmer v.Interstate/Johnson Lane Corporation involving whether a claim under the federal Age Discrimination in Employment Act was subject to arbitration?

A) That the agreement by which the plaintiff agreed to arbitrate all employment disputes as a condition of his employment was valid.
B) That the text of the federal Age Discrimination in Employment Act prohibited arbitration.
C) That the EEOC would be bound by the employee's agreement to arbitrate all employment disputes and that, therefore, requiring arbitration would be improper.
D) That compulsory arbitration improperly deprived the plaintiff of a public forum through which to prove his claims.
E) That arbitration was an inadequate remedy because arbitrators may not fashion equitable remedies.

Question 46

Bobby has a lawsuit in federal district court and asks Sally,a first year law student,about court-annexed ADR.What should Sally tell him?

A) Mediation is required by law in federal district court.
B) Arbitration is required by law in federal district court.
C) Mediation is required by law in federal district court, but arbitration is not required.
D) Neither mediation nor arbitration is required by law in federal district court, but all litigants must present a summary of their positions to a case neutral.
E) Federal district courts vary on the approved ADR methods.

Question 47

Which of the following is true regarding areas in which arbitration is used?

A) Arbitration is used in medical malpractice cases, environmental disputes, commercial contract disputes, and insurance liability claims.
B) Arbitration is used in medical malpractice cases, environmental disputes, and commercial contract disputes, but not in insurance liability claim disputes because those claims are governed strictly by state regulatory law.
C) Arbitration is used in environmental disputes, commercial contract disputes, and insurance liability claim disputes, but not in medical malpractice cases because those cases are governed strictly by state statutory law and also state common law on negligence.
D) Arbitration is used in medical malpractice cases, environmental disputes, and insurance liability claim disputes, but not in commercial contract disputes because those disputes are governed by the UCC.
E) Arbitration is used in medical malpractice cases, commercial contract disputes, and insurance liability claim disputes, but not in environmental disputes because those disputes are governed strictly by federal law.

Question 48

A(n)______ is a provision in a contract that mandates that all disputes arising under the contract must be settled by arbitration.

A) Binding arbitration clause
B) Court-annexed arbitration clause
C) Approved mediation/arbitration clause
D) Consolidated merger clause
E) ADR neutral clause

Question 49

According to the text,which of the following is true regarding defenses to an arbitration award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards?

A) The only defense recognized is that the losing party did not receive notice of the arbitration.
B) There are no recognized defenses.
C) The only two recognized defenses are (1) that the arbitrator acted outside the scope of her or his authority when making the decision and (2) that one of the parties to the agreement did not have the authority to enter into a legal contract.
D) The only two recognized defenses are (1) that one of the parties to the agreement did not have the authority to enter into a legal contract and (2) that the losing party did not receive notice of the arbitration.
E) The only three recognized defenses are (1) that the arbitrator acted outside the scope of her or his authority when making the decision; (2) that one of the parties to the agreement did not have the authority to enter into a legal contract; and (3) that the losing party did not receive notice of the arbitration.

Question 50

What types of ADR techniques exist in Japan?

A) Compromise and conciliation, but not arbitration
B) Conciliation and arbitration, but not compromise
C) Arbitration, but not compromise or conciliation
D) Compromise, conciliation, and arbitration
E) ADR is outlawed in Japan

Question 51

What is the primary ADR process used in federal district courts?

A) Mediation
B) Arbitration
C) Summary jury trials
D) Early neutral case evaluation
E) Private trials

Question 52

What type of dispute resolution process is med-arb?

A) A process in which the parties agree to start out in mediation and, if the mediation is unsuccessful on one or more points, to move on to arbitration.
B) A process in which the parties agree to start out in arbitration and, if the arbitration is unsuccessful on one or more points, move on to court-annexed ADR.
C) A process in which the parties agree to start in mediation and move to litigation if the mediation is unsuccessful.
D) A process in which the parties agree to start in arbitration and move to litigation if the mediation is unsuccessful.
E) A special type of blended mediation and arbitration applicable only in the medical malpractice arena.

Question 53

Which of the following is true regarding the use of arbitration and mediation in e-commerce cases?

A) Increasingly, litigants are using arbitration, but not mediation, to resolve disputes in e-commerce cases.
B) Increasingly, litigants are using mediation, but not arbitration, to resolve disputes in e-commerce cases.
C) Increasingly, litigants are using arbitration and mediation to resolve disputes in e-commerce cases.
D) Arbitration is allowed by federal law in e-commerce cases, but mediation is not allowed.
E) Mediation is allowed by federal law in e-commerce cases, but arbitration is not allowed.

Question 54

In which of the following do parties select a neutral third party and explain their respective positions to this neutral,who then evaluates the strengths and weaknesses of the case?

A) Summary jury trial
B) Med-arb
C) Early neutral case evaluation
D) Private trials
E) Neutral submission

Question 55

Billy signs an arbitration agreement providing that he will arbitrate any disputes with his employer,ABC Company.Billy believes that ABC Company has discriminated against him in violation of the Americans with Disabilities Act.The EEOC also investigated the situation and brought an action against ABC Company alleging that ABC Company discriminated against Billy in violation of the Americans with Disabilities Act.What is the effect of the arbitration clause in regards to the action brought by the EEOC?

A) The arbitration clause is enforceable and binding on the EEOC.
B) The arbitration clause is enforceable and binding on the EEOC only if ABC Company provided the EEOC with a copy of the agreement before the suit was filed.
C) The arbitration clause is enforceable and binding on the EEOC only if Billy is the only employee in the company who has allegedly been discriminated against under the Americans with Disabilities Act.
D) The arbitration clause is not binding on the EEOC.
E) The EEOC can avoid the arbitration clause only if it can show that it prosecuted ABC Company in the past and that ABC Company is a repeat offender.

Question 56

What is a summary jury trial?

A) An abbreviated trial that leads to a nonbinding jury verdict.
B) An unabbreviated trial that leads to a binding jury verdict.
C) An abbreviated trial that leads to a binding jury verdict.
D) An abbreviated trial in which only a few witnesses are called to the stand leading to a binding verdict.
E) A binding trial conducted by a panel of mediators after a failed mediation.

Question 57

Which of the following is true regarding private trials?

A) They may allow defendants to hide wrongdoing from the public.
B) Those who lack funds must use a slower public system, but information from private trials is open to the public, similar to trials in state or federal court.
C) They are generally slower than regular litigation.
D) They are a form of state or federal litigation closed to the public to protect the identity of litigants in certain sensitive situations.
E) They unfairly discriminate against corporations because by law in some cases corporations must pay the costs involved for indigent plaintiffs.

Question 58

When does a private trial typically occur?

A) After a jury trial and prior to appeal.
B) After a case has been filed in federal court, but parties must wait at least 30 days.
C) After a case has been filed in either state or district court.
D) Before a case has been filed in any court.
E) Upon order of a federal judge only.

Question 59

Mediation programs are underway in _____ of state courts.

A) More than one-third
B) More than one-half
C) More than 75%
D) Less than one-half
E) Less than 10%

Question 60

Which of the following is an ADR method in which a referee is selected and paid by the disputing parties to offer a legally binding judgment in a dispute?

A) Summary jury trial
B) Minitrial
C) Early neutral case evaluation
D) Private trial
E) Neutral submission

Question 61

Set forth the reasons by the Federal Arbitration Act under which an arbitrator's award may be set aside.

Question 62

Cindy and Clowie have a dispute regarding ownership of a dog,Rascal.Cindy removed Rascal's tags in order to give him a bath.Knowing what was coming,Rascal made a run for it and ended up at Clowie's home down the street.When Cindy saw Clowie walking Rascal,she demanded his return.Clowie refused.A lawyer in the neighborhood suggested either a neutral case evaluation or mediation in an attempt to resolve the feud.Describe mediation and neutral case evaluation.Which would you suggest and why?

Question 63

How is arbitration preferable to litigation,and what are criticisms of arbitration as compared to litigation?

Question 64

How are arbitrations similar and dissimilar to a court trial?

Question 65

Jackie is hiring Ron to do clean up and maintenance,as an independent contractor,for her building which has several tenants.She is aware that Ron has sued some previous building owners.He however,does a good job,and she would like to hire him.Ron has agreed to sign an arbitration agreement.What should Jackie do to have a binding agreement that will be enforced?

Question 66

What are four advantages of ADR over traditional litigation as set forth in the text?